2daysmallThe Australian Communications and Media Authority confirmed today that it has commenced an investigation into whether the licensee of the Sydney commercial radio station 2DAY complied with the Commercial Radio Codes of Practice 2004 (the code) in the broadcast of the program The Kyle and Jackie O Breakfast Show on 29 July 2009.

The investigation has been commenced in response to a number of complaints from members of the public who had complained to the station about a segment of the program and were dissatisfied with the station’s reply.

The segment involved a 14-year-old participant being asked questions about her sexual activities while attached to a lie detector.

The investigation will focus on whether the content of the broadcast met clause 1.5(a) of the code, which provides that ‘all program content must meet contemporary standards of decency, having regard to the likely characteristics of the audience of the licensee’s service’.

The code includes an obligation on licensees to ‘conscientiously’ consider written complaints and to ‘use its best endeavours to respond substantively in writing within 30 days’. Compliance with this obligation will also be investigated by the ACMA in the course of the investigation.

This investigation is separate from the broader-ranging investigation announced by the ACMA on 11 August 2009, which is looking at whether the code and existing industry practices provide sufficient safeguards for participants and subjects in live-hosted entertainment programs on commercial radio. The ACMA terms of reference for the broader investigation indicated it would use the facts and circumstances of this recent 2Day FM episode as a key case study.

Media contact: Donald Robertson, Media Manager on (02) 9334 7980.


The ACMA conducts various types of investigations under the Broadcasting Services Act 1992 (the BSA). Investigations under Part 11 of the BSA are generally conducted in response to complaints received by the ACMA relating to a possible breach by:

a licensed broadcaster: of the BSA, the regulations, a licence condition, a class licence or a code of practice; or
the ABC or SBS: of a code of practice.
Role of the ACMA
The ACMA receives complaints directly from people about possible breaches of the BSA, the regulations, licence conditions and class licences. The ACMA’s role in dealing with complaints under industry codes is prescribed by the BSA. Under section 148 of the BSA, a code complaint must be made first to a licensee and can only be made to the ACMA if the complainant is not satisfied with the licensee’s response or does not receive a response from a licensee within 60 days. In addition to investigations triggered by complaints, the ACMA can instigate its own investigation and the Minister for Broadband, Communications and the Digital Economy can direct the ACMA to conduct an investigation.

The ACMA’s performance of its role is informed by Section 5 of the BSA, which requires the ACMA to, among other things:

produce regulatory arrangements that are stable and predictable;
deal effectively with breaches of the legislation; and
use its powers in a manner that is commensurate with the seriousness of the breach concerned.
This requires the ACMA to use its enforcement powers appropriately and to identify the most effective and proportionate way of dealing with breaches. This is further reinforced in the Explanatory Memorandum to the BSA.

It [section 5] promotes the ABA’s [now the ACMA’s] role as an oversighting body . . . rather than as an interventionist agency hampered by rigid, detailed statutory procedures and legalism . . . It is intended that the ABA [now the ACMA] monitor the broadcasting industry’s performance against clear, established rules, intervene only where it has real cause for concern, and has effective redressive powers to act to correct breaches.

This statement reflects Parliament’s intention in enacting the co-regulatory framework and the ACMA’s prescribed role within that framework.

Complaints process—codes of practice
If a person wishes to complain about something of concern they have seen or heard on a program broadcast by a radio or TV station, and the matter is covered by a code of practice, the person must, by law, first make a written complaint to the station.

When making a complaint to the ACMA, a complainant must provide evidence that he or she has first made a complaint to the station, e.g. a copy of the complaint to the station, a copy of the station’s reply if this has been received, and any other relevant correspondence with the station. The ACMA takes all complaints seriously (except for those that are frivolous or vexatious or not made in good faith) and acknowledges all complaints in writing.

The ACMA considers the information provided and offers the relevant station an opportunity to provide its perspectives on the matter. When all relevant information is available, the ACMA assesses the complaint against the relevant provisions of the code of practice. When an investigation is completed, the ACMA is required to notify a complainant of the results of an investigation under Part 11 of the BSA. The form this notification takes is not specified in the BSA—sometimes it is in the form of a letter, but more usually it takes the form of an investigation report, which is provided to both the complainant and the licensee concerned.

The ACMA’s usual practice is to not provide personal or private information in an investigation report.

Under the Act, the ACMA has discretion whether or not to publish the report of an investigation conducted under Part 11 of the BSA. The ACMA is not required to publish an investigation report if publication would disclose matter of a confidential character or be likely to prejudice the fair trial of a person. If the ACMA intends to publish an investigation report that may adversely affect the interests of a person, the ACMA must give the person an opportunity to make representations in relation to the matter.

The ACMA’s powers
The ACMA has a range of powers intended to enable it to deal effectively with breaches of the rules, including the codes developed under the BSA, all in a manner commensurate with the seriousness of the breach.

Where there has been a breach of the commercial radio code, the ACMA may accept an enforceable undertaking for the purpose of securing future compliance with the code or impose an additional licence condition under section 43 of the BSA, requiring a licensee to comply with the codes. For a licence condition to be imposed under section 43 of the BSA, the ACMA first needs to give the licensee written notice of its intention to impose the licence condition; the licensee must be given a reasonable opportunity to make representations to the ACMA in relation to the proposed licence condition and the proposed licence condition must be published in the Commonwealth Gazette before becoming effective. The licensee can apply for the ACMA’s decision to be reviewed by the Administrative Appeals Tribunal.

The ACMA may also informally agree to accept measures by broadcasters to improve compliance. For example, the ACMA has on many occasions agreed measures with licensees involving action by them intended to ensure compliance problems are addressed and are effective. Such measures have often succeeded in improving behaviour within licensees (and networks).

If a licence condition is successfully imposed and a licensee breaches such an additional licence condition, then as alternatives to suspending or cancelling the licence, the ACMA has power to issue a remedial direction requiring compliance. In the event that the licensee does not comply with a remedial direction, the ACMA may:

pursue a civil penalty;
refer the matter for prosecution as an offence;
suspend or cancel the licence; or
at any time, accept an enforceable undertaking (including provisions dealing with compliance with a code).
If the ACMA has convincing evidence that codes of practice have failed to provide appropriate community safeguards in relation to a matter, it can determine a new program standard to apply to a particular section of the broadcasting industry.